DECISION ON APPLICATION FOR A LIMITED RE-OPENING
OF THE BOSNIA AND KOSOVO COMPONENTS OF THE PROSECUTION
CASE WITH CONFIDENTIAL ANNEX

_______________________________________

Office of the Prosecutor

Ms. Carla Del Ponte
Mr. Geoffrey Nice

The Accused

Mr. Slobodan Milosevic

Court Assigned Counsel

Mr. Steven Kay, QC
Ms. Gillian Higgins

Amicus Curiae

Prof. Timothy McCormack

THIS TRIAL CHAMBER of the International Tribunal
for the Prosecution of Persons Responsible for Serious
Violations of International Humanitarian Law Committed
in the Territory of the former Yugoslavia since
1991 (“Tribunal”), is seized of an
“Application for Limited Re-Opening of the Bosnia and
Kosovo Components of the Prosecution Case” (“Application”),
and hereby renders its decision thereon.

I. Procedural History

1. On 25 February 2004, the Office of the Prosecutor
(“Prosecution”)
brought its case in chief against Slobodan Milosevic
(“Accused”) to a close.1

2. On 12 July 2004, the Prosecution filed a confidential
and ex parte “Prosecution
Notice of Potential Forthcoming Request to Re-Open
its Case in relation to Srebrenica Allegations” (“Notice”),
in which it indicated that “there is a possibility
that the Prosecution will ask to re-open its case
at some stage in relation to certain evidence pertaining
to the charges in the Bosnia component of the indictment
against the Accused, particularly those charges
relating to Srebrenica.”2
The Notice concluded with the statement that “SsChould
the Prosecution seek to re -open its case, such an
application will be filed as soon as possible.”3

3. On 18 July 2005, the Prosecution filed an “Application
for Limited Re-Opening of the Bosnia and Kosovo Components
of the Prosecution Case” (“Application”), with
a confidential Annex A entitled “Items for which the
Prosecution Seeks a Limited Re-Opening of the Bosnia
and Kosovo Components of the Prosecution Case” (“Application
Annex”). An “Addendum and Clarification” to the Application
was filed on 26 July 2005 (“Addendum”), in which
the Prosecution presents additional information with
regard to one of the documents listed in the Application
Annex, corrects an error in the Application Annex,
and requests that a document inadvertently omitted
from its earlier filings be incorporated into the
Application Annex and included in the Chamber’s consideration
of the Application. The Application included a request
that the Chamber order that the Notice be made inter
partes, but ostensibly
retain its confidential status. The Chamber will grant
this request.

4. On 31 August 2005, Assigned Counsel filed their “Submissions
in Response” to the
Application (“Response”), along with a confidential
Annex A (“Response Annex”) setting
forth their detailed objections to the items for which
the Prosecution seeks re- opening. The Assigned Counsel
also request leave to file a response in excess of
the page limits, noting that such length is necessary “in
order to deal comprehensively with the issues raised
and the extensive materials relied upon by the Prosecution
”.4 A
Corrigendum to the Response was filed on 6 September
2005, and consisted of a single paragraph that is intended
to correct assertions made in paragraphs 8 and 17
of the Response.

5. The Prosecution filed a Reply to the Response on
7 September 2005 (“Reply”), in
which it also seeks leave to reply under Rule 126 bis.
An addendum to the Reply was filed by the Prosecution
on 9 September 2005 (“Reply Addendum”), but included
no separate request for leave to file.

6. The Trial Chamber believes that its decision is
aided by consideration of all the arguments raised
and information provided by the parties. The Prosecution
is therefore granted leave to file the Reply and
the Reply Addendum, and the Chamber accepts the
filing of the over-sized Response by the Defence.

II. Applicable Law

7. Rule 85 of the Rules of Procedure and Evidence of
the International Tribunal (“Rules
”), which governs the order of presentation of evidence
in trial proceedings, provides in relevant part:

(A) Each party is entitled to call witnesses and
present evidence. Unless otherwise directed by
the Trial Chamber in the interests of justice, evidence
at the trial shall be presented in the following
sequence:

(i) evidence for the prosecution;
(ii) evidence for the defence;
(iii) prosecution evidence in rebuttal;
(iv) defence evidence in rejoinder;
(v) evidence ordered by the Trial Chamber pursuant
to Rule 98; and
(vi) any relevant information that may assist
the Trial Chamber in determining an appropriate
sentence if the accused is found guilty on one
or more of the charges in the indictment.

8. Although the Rules do not specifically so provide,
the jurisprudence of the Tribunal recognises that
a Trial Chamber may grant leave to the Prosecution
to re-open its case “in order to present new evidence
not previously available to it.”5

9. There are therefore two separate circumstances in
which the Prosecution may seek to introduce further
evidence after the close of its case in chief: it
may seek to introduce evidence to rebut the defence
case, and it may seek to introduce new evidence by
re-opening its case in chief. Two different legal
standards apply,6
and both the timing of the request and the substantive
content of the evidence are factors in deciding whether
the relevant standard is satisfied. Although the Application
seeks only the re-opening of the Prosecution’s case
in chief, and does not request rebuttal as an alternative
form of relief, the Chamber considers that a brief
discussion of both legal standards will clarify the
issues for determination with regard to disposition
of the Application and serve as guidance to the parties.

10. The Celebici Appeals Chamber formulated
the standards that apply for each as follows. “Rebuttal
evidence must relate to a significant issue arising
directly out of defence evidence which could not reasonably
have been anticipated”;7
where evidence is intended to establish a matter which
is “a fundamental part of
the case the Prosecution was required to prove”, however, “SsCuch
evidence should be brought as part of the Prosecution
case in chief and not in rebuttal.”8
Moreover, even if the evidence could not have been
adduced earlier because it was not in the Prosecution’s
possession during its case in chief, its character
as newly obtained evidence does not render it admissible
in rebuttal if it does not meet this standard. In
the words of the Appeal Judgement, that character “merely
puts it into the category of fresh evidence, to which
a different basis of admissibility applies.”9

11. Elaborating on the basis applicable to such newly
obtained evidence, the Appeals Chamber stated that “the
primary consideration in determining an application
for reopening a case to allow for the admission
of fresh evidence is the question of whether, with
reasonable diligence, the evidence could have been
identified and presented in the case in chief of
the party making the application.”10
By noting that “the burden of proving that reasonable
diligence was exercised in obtaining the evidence
lies on the Prosecution,”11
the Appeals Chamber affirmed the Celebici Trial
Chamber, which had held that this burden “rests squarely” on
the party seeking to adduce the evidence.12

12. Even if the reasonable diligence standard is satisfied,
however, Trial Chambers retain a general discretion
under Rule 89(D) to deny re-opening if the probative
value of the proposed evidence is substantially
outweighed by the need to ensure a fair trial.13 With
respect to this weighing exercise, the Tribunal’s
jurisprudence clearly establishes that “it is
only in exceptional circumstances where the justice
of the case so demands” that
a Trial Chamber should exercise its discretion to allow
the Prosecution to adduce
‘fresh’ evidence after the parties to a criminal trial
have closed their case.14

13. Three factors have been identified in the jurisprudence
as being “highly relevant
to the fairness to the accused of admission of fresh
evidence”,15
of which only the first two are applicable to this
single-defendant case: (1) the stage of the trial
at which the evidence is sought to be adduced; (2)
the potential delay in the trial that admission of
the evidence could cause, including the appropriateness
of a possible adjournment in the overall context of
the trial; and (3) the effect of bringing new evidence
against one accused in a multi-defendant case.16
With regard to the first factor, following the Celebici Trial
Chamber’s lead, subsequent decisions on motions to
re-open have paraphrased or clarified “the
advanced stage of the trial” as meaning “the later
in the trial that the application is made the less
likely the Trial Chamber is to accede to the request”.17

14. When assessing the current Application, therefore,
the Trial Chamber has considered the following questions:

i. Was the evidence obtained after the close of the
Prosecution’s
case in chief (“newly
obtained”)? If not, then the test for re-opening is
inapplicable, and the evidence is inadmissible for
the purpose of a re-opened case in chief. The Chamber’s
conclusions with respect to this question are discussed
below in Section IV of this Decision.

ii. If the evidence was newly obtained, could this
evidence have been identified and presented, through
the exercise of reasonable diligence, during the
Prosecution’s
case in chief? If so, then the evidence cannot be
the basis for re-opening. The Chamber’s conclusions
with respect to this question are discussed below
in Section V of this Decision.

iii. If the evidence could not have been identified
and presented through the exercise of reasonable
diligence, should the Trial Chamber nevertheless
exercise its discretion under Rule 89(D) to deny
re-opening? The Chamber’s conclusions with respect
to this question are discussed below in Section
VI of this Decision.

15. For those items of evidence that were newly obtained,
the Chamber has engaged in the two-stage inquiry
required by the test for re-opening. First, the Prosecution’s
submissions with regard to all the proposed items
of evidence, which include the statements of those
persons identified as prospective witnesses, were
examined to determine whether the reasonable diligence
standard had been satisfied. Any item that the Chamber
determined could have been identified and presented
during the Prosecution’s case in chief, through
the exercise of reasonable diligence, was deemed
to have failed this stage of the re-opening test.
Second, the Chamber then considered the items for
which the reasonable diligence standard had been
satisfied, and weighed each item’s probative value
against the potential detrimental effect that its
admission as evidence in chief would have on the
fairness of the trial. The Chamber’s conclusions
with regard to all items discussed in Section IV
of this Decision are unanimous. In Section V, the
conclusions with regard to items 15, 27, 35, 37,
42, 46, 47, 48, 49, 50, 51, 52, 54, 56, 57, 58,
59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 76, 77,
78, 82, 85, 86, and 87, and proposed witnesses B-345
and TA-378 are also unanimous ; the conclusions with
regard to items 13 and 21 are reached by a majority
of Judges Kwon and Bonomy; and the conclusions with
regard to the other items in this Section are reached
by a majority of Judges Robinson and Bonomy. The
conclusions with regard to the items discussed in
Section VI are unanimous.18
The interpretation of the legal standard of reasonable
diligence in the context of this case that is included
in Sections V represents the conclusions of a majority
of the Chamber, Judges Robinson and Bonomy. Judge
Kwon’s views on the reasonable
diligence standard are set forth in a partial dissenting
opinion appended to this Decision.

III. The Application

16. The Prosecution seeks the re-opening of its case
in chief in order to present six new witnesses and
fifty new documents.19
These witnesses and documents fall into five categories,
which the Application asserts
“relate to key issues in the Prosecution’s case”:20
a plan to ethnically cleanse Bosnia of its Muslim population
dating from at least 1992; VJ involvement in the war
in Bosnia between 1992 and 1995; MUP Serbia involvement
in the Bosnia war between 1992 and 1995, including
in the Srebrenica massacre; VJ personnel files of
high ranking military officials involved in the wars
in Bosnia ; and VJ involvement in the Racak massacre
in 1999.

17. In the Application, The Prosecution describes its
proposed witnesses and their expected testimony as
follows:

One of these witnesses is B-235,
a former VJ member who was on the witness list
when the tragic circumstances of the ill-health
of the Presiding Judge led to the Prosecution’s early completion of its case. The
second witness, B-345, is a new witness who can
explain the content of the Scorpions videotape,
the purpose of the Scorpions unit in the area,
and introduce all the videotape-related exhibits.
The third witness, Slobodan Stojkovic, is the Scorpion
unit member who filmed the Scorpions videotape.
He can authenticate the content of the videotape
and identify the perpetrators of the killings with
absolute certainty. The fourth witness, Goran Stoparic,
was denied permission to testify days before the
Prosecution completed its case. … The fifth witness
Sknown by the pseudonym TA-378C is a man who heard
the killings of the Muslim prisoners as shown
on the Scorpions videotape and participated in
the removal of their bodies. The sixth witness
is TA-377, the former commander of a VJ T55 tank
platoon based in Urosevac/Ferizaj Kosovo. TA-377
has told members of the Prosecution that on 15
January 1999, his tank platoon took up a position
on a hill overlooking the village of Racak, firing
at the village.21

18. Witness statements for five of the six proposed
witnesses are included as proposed items of evidence
in the Application. For proposed witness TA-377,
however, the only item of evidence offered by the
Prosecution is the redacted notes of the investigator
who interviewed TA-377, labelled in the Application
as item 90. Moreover, the Application indicates that
the Prosecution has not obtained TA-377’s agreement
to testify in this case.22 In
the view of the Chamber, item 90 is not an acceptable
alternative to a formal witness statement, and is
not susceptible to admission as evidence; furthermore,
TA-377 cannot be treated as a possible witness in
the context of an application to re-open in the absence
of an express agreement to testify. For these reasons,
the Chamber cannot apply the test for re-opening to
this document and this proposed witness, and the Application
is denied with regard to item 90 and proposed witness
TA-377.

19. The documentary evidence can be sorted into the
afore-mentioned five categories identified by the
Prosecution as follows. The sole document in the
first category,23 that
of an alleged plan to ethnically cleanse Bosnia
of its Muslim population, is part of a document collection
obtained as part of the VRS Drina Corps Archive.
The second category, that of alleged VJ involvement
in the war in Bosnia, contains the remaining items
from this document collection, as well as two citizenship
certificates, an identity card, a certificate of
promotion, a cable, and a document listing officers
in the VRS and VJ.24
The third category, that of alleged MUP Serbia involvement
in the war in Bosnia, includes three reports relating
to MUP Serbia support to forces of the Autonomous
Prosecution of Western Bosnia and Herzegovina (APWB)
in the Bihac pocket, and two documents relating to
the presence of Serbian MUP personnel in Trnovo.25
This category also includes the full length video recording
of the Scorpions unit from which excerpts were played
in court on 1 June 200526
and several related documents, including ten documents
in a collection of forensic evidence related to the
killings depicted in that video, four documents from
a document collection relating to a domestic war crimes
prosecution, and four items of evidence relating to
the identification of victims depicted in the video
by their relatives.27 The
fourth category is limited to the VJ personnel files
of high-ranking military officials.28
Item 90, with regard to which the Chamber has already
denied the Application,29
was the only document contained in the fifth category.

IV. Whether the Proposed Items are Newly
Obtained

20. The primary and logically first issue to be decided
is whether the proposed evidence was newly obtained,
and therefore susceptible to being the basis for
a successful application to re-open. As noted above,
under the Celebici test for re-opening, “the
primary consideration in determining an application
for reopening a case to allow for the admission of fresh
evidence is the question of whether,
with reasonable diligence, the evidence could have
been identified and presented in the case in chief
of the party making the application.”30
Both the Prosecution’s Notice of July 2004 and the
introduction to the Application, however, concede
that some of the material was obtained before the close
of the Prosecution’s case in chief,31 a
situation which would generally preclude re-opening.32
The Prosecution nonetheless argues that “the exclusion
of some of the material could lead to a miscarriage
of justice” and urges the Chamber to adopt some version
of the standard for admitting evidence on appeal.33
The Prosecution reprises this argument in its Reply,
when it notes that “StChe Trial
Chamber’s discretion to admit evidence under the test
set out by the Celebici
Appeals Chamber falls within a wider discretion
to admit evidence under Rule 89 (B), (C) and (D).”34 Ignoring
both the language in the Celebici Appeals Judgement
and the manner in which Chambers have applied the
narrow test for re-opening, the Prosecution again urges
the Chamber to adopt a ‘miscarriage of justice’ standard,
ostensibly based on its
“wider discretion”:

Within that wider discretion, the Trial Chamber
could admit evidence which, with reasonable diligence, could
have been discovered and/or presented during
a party’s case in chief. Logically, a higher
standard for admissibility should be set, namely
exclusion of the evidence would lead to a miscarriage
of justice.35

21. Although the Prosecution is correct in the sense
that there are some circumstances in which Trial
Chambers may admit evidence that could have been
presented during a party’s case in chief, its assertion
is incorrect in the context of a party’s
application to re-open its case. Under the Celebici test,
satisfaction of the reasonable diligence standard
is a necessary—but not on its own sufficient—step
for a successful re-opening application.36
As such, it may not be replaced by the “residual discretion” that
the Prosecution mistakenly asserts as a standard directly
applicable to its Application.37

22. The Prosecution’s attempt to confuse the applicable
legal standards is inconsistent with both the jurisprudence
and practice of the Tribunal. No other Trial Chamber
has accepted a “miscarriage of justice” standard as
a replacement for, or an alternative to, the well-established “reasonable
diligence” standard for re-opening a case at
trial, and the Trial Chamber notes that the Appeals
Chamber specifically endorsed the latter standard
for use at the trial level at the same time that it
was developing its own jurisprudence on the applicable
standard on appeal.38
Moreover, although analysis of the probative value
of the proposed evidence is a factor in the test for
re-opening, it is clearly distinguishable from the
certainty that the evidence in question “would have” an
effect on the verdict—the standard
applicable on appeal39—because
a probative value analysis neither invites nor requires
an opinion on the ultimate question of an accused’s
responsibility for the crimes charged. Finally, in
the test for re-opening, reasonable diligence is a
threshold inquiry: if a party cannot establish that
the evidence could not have been obtained and presented
during its case in chief, the application fails, and
the Trial Chamber need not consider the probative value
of the evidence.40

23. The Trial Chamber therefore holds that any proposed
item of evidence that was in the Prosecution’s possession
before the end of its case in chief, and which was
therefore not newly obtained, cannot constitute
a basis for re-opening. This conclusion applies
not only to items that were not identified or presented
because of some inadvertence or administrative oversight
on the part of the Prosecution, but also to those
items for which the Chamber specifically denied admission
during the Prosecution’s
case in chief. As a matter of law, despite the argument
of the Prosecution to the contrary,41 it
is irrelevant that the reason this latter category
of evidence was not presented could be viewed as
being beyond the control of the Prosecution. Application
of the reasonable diligence standard—indeed, the
entire exercise of re-opening a party’s case—is reserved
for
‘fresh’ evidence, which by definition excludes any
evidence already in the possession of the moving party
during its case in chief. Such evidence is inappropriate
as a basis for re-opening. Accordingly, the Application
is denied with regard to the following items and witnesses:
items 26, 31, 32, 69, 70, 71, 73, 74, and the unnumbered
document discussed in the Addendum; and proposed witnesses
B-235 and Goran Stoparic. In addition, as discussed
below, much of item 64 is not appropriate for re-opening
because it is not actually newly discovered evidence.42
A detailed discussion of the Chamber’s decision with
regard to these items, as well as those discussed
below in the context of the two stages of the test
for re-opening, is set forth in the Confidential Annex
to this Decision.

V. The Reasonable Diligence Stage of the
Re-Opening Analysis

24. The next issue to be determined is whether the
reasonable diligence standard has been met for the
remaining prospective exhibits and witnesses. Only
if it has, do probative value and the fairness of
the trial fall to be considered. The Tribunal’s
case law makes clear that the burden of proving that
reasonable diligence was exercised is placed upon
the party seeking to re-open its case.43
As the moving party, the Prosecution had two opportunities—the
initial Application and the Reply—to provide information
on its efforts to identify, locate, and obtain the
items in question.44 In
this regard, the Chamber notes that in responding
to objections raised by Assigned Counsel, the Prosecution
used its Reply to supplement its submissions on its
efforts to obtain some of the proposed items of evidence.45

25. For several documents in the Application, the Prosecution
reports no attempt to identify, locate, or obtain
them until well after the start of its case on the
relevant indictment, or close to the end of its
case in chief. While the Chamber is cognisant of
the difficulties that parties before the Tribunal
face in investigating and preparing cases of such
scope and complexity, it considers that a party seeking
evidence intended for use in its case in chief should
not wait until several months after the commencement
of its case to begin the process of obtaining it.
Such a delay, particularly if the party in question
anticipates difficulty in securing the evidence,46
is inconsistent with the exercise of reasonable diligence.47
The Application is therefore denied with regard to
items 30, 79, 80, 81, 83, 84, 88, and 89. The Chamber
notes that the Prosecution’s submissions, though elliptical,
indicate that it is possible that items 54, 56, 59,
and 60 were not part of a document collection that
was in the possession of the Prosecution before the
end of its case in chief.48 Even
if these documents were not in the hands of the Prosecution
before 25 February 2004, however, it is clear that
the category of documents to which they belong was
not requested until December 2003. For the reasons
set forth thus far in this paragraph, therefore, the
Application is denied with regard to those items regardless
of the date on which they were actually received by
the Prosecution.

26. It is even clearer that the reasonable diligence
standard is not satisfied where no attempt to locate
or obtain the evidence in question was made until
after the close of the party’s case, and no explanation
for such delay is provided. Accordingly, the Application
is denied with regard to items 15, 78, 82, 85, 86,
and 87.

27. In contrast to those situations, however, where
the party seeking re-opening was ignorant of the
very existence of a proposed item of evidence until
well into its case or after the close of its case,
as long as such ignorance is reasonable under the
circumstances, the party’s delay in commencing its
efforts to obtain the evidence should not necessarily
lead to the conclusion that it was not reasonably
diligent. Similarly, in the unique circumstance where
the proposed item of evidence is in the exclusive
possession of an at-large accused, the Prosecution’s
failure to make a separate or independent effort
to secure the item does not mean that it was not
reasonably diligent, particularly in light of its
continued efforts to ensure that the accused is taken
into custody. For these reasons, the Chamber is satisfied
that items 13, 21, 37, 46, 47, 48, 49, 50, 51, 52,
57, 58, 61, 62, 63, 65, 66, 67, 68, 76, and 77,
and proposed witnesses B-345 and TA-378 could not,
with reasonable diligence, have been identified
and presented during the Prosecution’s case in chief.
With regard to item 64, the Chamber considers that
only part of this witness statement is potential
evidence that could not have been presented in the
Prosecution’s
case in chief. To the extent that the contents of
this statement cover the same topics and present
the same information as the first statement of Goran
Stoparic, that proposed evidence is not newly discovered,
and is inappropriate for re-opening. The second
stage of the test for re-opening will therefore be
applied only to the information in this statement
that is actually newly obtained evidence.49
With regard to item 27, however, the Chamber concludes
that the Prosecution’s professed
ignorance of its existence was not reasonable under
the circumstances, because the category within which
the evidence falls by virtue of its source, its content,
and its location is such that a reasonably diligent
party would have discovered the item in time to present
it during its case in chief. The Application is therefore
denied with regard to this item.

28. In relation to a number of items, the Prosecution
provides no information at all about its efforts
to identify, locate, or obtain the proposed evidence,
other than the date on which the item was eventually
received. In the absence of such information, particularly
the date on which the Prosecution first learned of
the item’s existence
or first requested its provision, the Chamber is unable
to evaluate whether the Prosecution exercised reasonable
diligence. Since the onus of demonstrating that
this first stage of the re-opening test has been
satisfied rests firmly on the moving party, where
that party fails to provide sufficient information
to permit a thorough evaluation of its application,
the Chamber can only conclude that it has not discharged
its burden. For these reasons, the Chamber denies
the Prosecution’s request to
re-open its case with regard to items 35, 42, and 75,
and proposed witness Slobodan Stojkovic.

29. The last set of items consists of the documents
that were obtained by the Prosecution as part of
the VRS Drina Corps archive. In essence, the Prosecution’s
argument that it had exercised due diligence with
regard to these documents hinges upon the fact that
it was dealing with recalcitrant government authorities,
whose lack of co-operation during the case in chief
hindered its ability to obtain documents.50
As the Prosecution itself points out, however, it has
made extensive use of Rule 54 bis to compel
the production of relevant information for this trial,
and has also used requests for assistance both before
and during the course of its case in chief.51 It
does not appear, however, that any of these documents
was ever the subject of Rule 54 bis litigation,
and the Prosecution fails to explain why it did not
resort to this procedural mechanism when confronted
with a continued lack of co-operation. The Application
is therefore denied with respect to items 1, 4, 16,
17, 18, 19, and 23, because the Prosecution has not
met its burden of demonstrating that the reasonable
diligence standard has been satisfied.

30. Similarly, for item 6, the Reply explains that
the Prosecution made repeated Requests for Assistance
for this item, but makes no mention of any attempt
to compel production of the document through Rule
54 bis litigation. The Chamber notes the
considerable gap between the two earliest requests
for item 6 and the remaining requests that eventually
led to the document’s provision to the Prosecution,
and the lack of any explanation for the Prosecution’s
apparent resignation to the authorities’ refusal
to provide the document. If the reason for this
gap was the Prosecution’s belief
that such requests were futile because the authorities
concerned would not answer them, it should have
included this document among the material for which
it sought compelled production under Rule 54 bis,
or at very least explained in the Application why
it made no resort to this mechanism.52
Although the Chamber recognises that Rule 54 bis should
not be the first or only method relied upon by parties
seeking evidence from states, it nevertheless concludes
that, in the circumstances of this case, the Prosecution’s
failure to take advantage of all the means available
to it to obtain evidence, especially when confronted
with what it viewed as the consistently obstructive
behaviour of the authorities in question, cannot be
considered the exercise of reasonable diligence.53 Accordingly,
the Chamber denies the Application with regard to item
6.

31. After considering the Prosecution’s submissions
in relation to the first stage of the re-opening test,
the Chamber therefore concludes that the reasonable
diligence standard has been satisfied for only 21
documents and one proposed witness: items 13, 21,
37, 46, 47, 48, 49, 50, 51, 52, 57, 58, 61, 62, 63,
65, 66, 67, 68, and 77, part of item 64, and proposed
witness B-345.54

32. The Chamber need not, however, actually subject
item 77 to the balancing test in the second stage
of the re-opening analysis. When the Prosecution
submitted the Application in mid-July 2005, no translations
of any of the thirteen extensive personnel files
were provided, so the Chamber would not have been
able to conduct the analysis of that material’s
probative value that is required by the second stage
of the test for re-opening. Since that date, however,
portions of several of the personnel files, along
with the corresponding translations of the excerpts,
have been tendered and admitted as Prosecution exhibits
used in the cross-examination of a Defence witness.55 Since
item 77 is among the limited group of personnel
files from which translated excerpts have already
been admitted, the Prosecution’s
request to have it admitted as the basis for a re-opened
case in chief is denied as moot.56

VI. The Balancing Test Stage of the Re-Opening
Analysis

33. The Trial Chamber must now exercise its general
discretion under Rule 89(D) to grant or deny the
Application with respect to the remaining items for
which the Prosecution demonstrated that the reasonable
diligence standard has been satisfied: items 13,
21, 37, 46, 47, 48, 49, 50, 51, 52, 57, 58, 61, 62,
63, 65, 66, 67, and 68, part of item 64, and proposed
witness B-345. In exercising that discretion, which
requires weighing the probative value of the evidence
against the need to ensure a fair trial, the Trial
Chamber is mindful that “it is only in exceptional
circumstances where the justice of the case so demands” that
a party should be permitted to re-open its case to
present new evidence.57

A. Potential Detrimental Effect of Admission
on Fairness of Trial

34. As Assigned Counsel note in their Response, “[t]he
Prosecution’s application to
re-open was filed on 18 July 2005, more than half-way
through the Accused’s presentation
of his case.”58 Assigned
Counsel argue that granting the Application would
breach the Accused’s fundamental fair
trial rights in at least two respects. First, admitting
a large amount of Prosecution evidence at an advanced
stage of the trial would prejudice the Accused in the
presentation of his case, because, “had the proposed
documents and witness testimony been admitted prior
to the start of the defence case, the Accused would
have used his allotment of time differently”.59 Second,
Assigned Counsel contend that the Prosecution’s submissions,
and its estimate of how much additional time would
be required to deal with the evidence if it were admitted,
are “disingenuous and fail[] to take into account
the fair trial rights of the Accused.”60 In
their submission, delay would be caused not only by
the fact that many more witnesses would be necessary
to provide a sufficient basis for the admission of
the items that are the subject of the Application,61 but
also by the requirements of Article 21(4)(b) of the
Statute, pursuant to which “the
re-opening of the Prosecution’s
case would inevitably necessitate an adjournment of
the proceedings in order to allow the Accused time
to investigate and prepare his case in relation to
the new evidence presented.”62 Contrary
to the Prosecution’s estimate of six days,63
Assigned Counsel submit that “SaC delay in the conclusion
of the trial proceedings of at least three months
is a realistic prospect.”64

35. The Prosecution’s arguments for the balancing test
stage of the inquiry are limited to the submissions
presented in the original Application; nothing in the
Reply directly answers Assigned Counsel’s arguments
in the Response. With regard to the advanced stage
of the trial, the Application concedes that it was
at a “relatively advanced
stage” even in mid-July 2005, but merely notes that
as the Accused had not yet completed the Kosovo portion
of his case, “the evidence could be presented before
the close of the Kosovo phase of the Defence case
and before the Accused presents his first Bosnia-specific
witness, thereby preserving his fair trial rights.”65
The Prosecution’s submissions with regard to delay
and possible prejudice to the Accused are premised
on the assumption that the Chamber would have issued
a decision on the Application, which was filed on
18 July 2005, in time for the Accused and his legal
team to “consider the material contained in this Application
over the summer recess and adjust the presentation
of his Defence case accordingly.”66
Although conceding that “[t]he Accused and Assigned
Counsel should … be allowed
to present their objections to the proposed documents”,67
the Application appears to envision that such objections
would have been prepared in time for the Chamber to
consider in the course of issuing its decision no later
than four days after receiving the Application,68
or that the Chamber would have issued a decision granting
the Application without waiting for the preparation
and submission of responses from the Accused or Assigned
Counsel.69 In
sum, these arguments misapprehend the significance
of the factors applied in the test for re-opening.

36. In light of the factors identified in the jurisprudence
on re-opening and the submissions of the parties,
the Chamber has weighed the following considerations
against the probative value of each item for which
the reasonable diligence standard is satisfied :
the advanced stage of trial proceedings; the certainty
that a delay, of whatever length, would be caused
by the admission of the proposed evidence; and the
probable extent of such a delay. In particular,
the Chamber accepts neither the Prosecution’s
estimate that only six additional hearing days would
be necessary if the Application were granted with
respect to all the items therein, nor its submission
that no delay or adjournment would be caused by
the admission of new documents. In the view of the
Chamber, significantly longer would be required.
With the possible exception of the witness statements
for proposed witnesses, the Prosecution identifies
no procedural basis for the admission of the numerous
documents for which it also seeks re-opening. While
the Trial Chamber has admitted documents that were
not adduced through witnesses, it is not clear that
the documents presented by the Prosecution would
be admissible under the principles identified by
the Trial Chamber in its earlier decisions,70 so
it is possible that additional witnesses would be
needed to authenticate these documents. Moreover,
the Accused would need additional time to prepare
a defence with regard to the new evidence, and would
have the right not only to cross-examine Prosecution
witnesses, but also to lead evidence in response
to any evidence admitted as part of a re -opened
case in chief.

B. Probative Value of Items for Which Reasonable
Diligence was Established

37. In its seminal decision on the legal test for re-opening,
the Celebici Trial
Chamber held:

Great caution must be exercised by the Trial Chamber
lest injustice be done to the accused, and it is
therefore only in exceptional circumstances where
the justice of the case so demands that the Trial
Chamber will exercise its discretion to allow the
Prosecution to adduce new evidence after the parties
to a criminal trial have closed their case.71

Even though a showing of ‘exceptional circumstances’ is
not a separate burden imposed upon the moving party,72 the term
is a clear description of the context in which an application
to re-open would be successful, and is intended to
guide Trial Chambers’ exercise of their discretion. As such, this general principle is particularly
relevant to the evaluation of probative value in the
second stage of the re-opening test. Given the concern
expressed in the Statute, the Rules, and the jurisprudence
of the Tribunal for the Accused’s
right to a fair and expeditious trial,73
the Chamber considers that the exceptional measure
of re-opening the Prosecution’s
case in chief for the admission of evidence that is
certain to cause delay, at a late stage of a trial
that began three and a half years before the Application
was submitted, is warranted only where the probative
value of the proposed evidence is particularly high.
In the particular circumstances of this case, including
the forms of responsibility alleged in the indictments74
and the extensive evidence relating to underlying offences
already adduced during the Prosecution’s case in chief,
the Trial Chamber is of the opinion that, in order
to have sufficient probative value to be accepted
as an appropriate basis for re -opening, the evidence
proposed should have significant bearing on the individual
criminal responsibility of the Accused. In addition,
since this assessment of probative value occurs in
the context of an application to admit new evidence,
proposed evidence that is substantially similar in
all important respects to evidence already admitted
during the Prosecution’s case in chief will not warrant
re-opening; the delay occasioned by its admission
could not be substantially outweighed by whatever
probative value such cumulative evidence could present.

38. For the reasons set forth in detail in the Confidential
Annex, the Chamber concludes that none of the items
for which reasonable diligence was established has
sufficient probative value to warrant admission
as the basis of a re-opened case in chief. Although
most of the items have some probative value in relation
to the underlying offences charged in the indictments,
none is of significance for the ultimate legal question
of whether the Accused is responsible for the crimes
alleged in the indictments. None of the material
proposed would add significantly to the existing
evidence relating to the Accused’s individual criminal
responsibility. The Prosecution’s
request to re-open its case with regard to these items
is therefore denied.

VII. Disposition

39. Pursuant to Rules 54 and 126 bis of the
Rules of Procedure and Evidence of the International
Tribunal (“Rules”), the Trial Chamber hereby unanimously
ORDERS as follows:

i. The status of the Notice shall be changed from confidential
and ex parte
to confidential and inter partes;

ii. Assigned Counsel are granted leave to file the
oversized Response; and

iii. The Prosecution is granted leave to file the Reply;
and

iv. The Application is denied.

40. A separate opinion by Judge Kwon is attached to
this Decision.

Done in English and French, the English text
being authoritative.

__________________________
Judge Patrick Robinson
Presiding

Dated this thirteenth day of December 2005
At The Hague
The Netherlands

[Seal of the Tribunal]

1 - Prosecutor v. Milosevic,
Case No. IT-02-54-T, Prosecution Notification of
the Completion of Its Case and Motion for the Admission
of Evidence in Written Form”, 25 February 2004. 2 - Notice,
para. 1.3 - Ibid.,
para. 11.4 - Response,
para. 7.5 - Prosecutor
v. Delalic, Mucic, Delic, and Landzo, Case No.
IT-96-21-T, Decision on the Prosecution’s Alternative
Request to Reopen the Prosecution’s Case, 19 August
1998 (“Celebici Trial Decision”), para. 26.
See also Prosecutor v. Delalic, Mucic, Delic, and
Landzo, Case No. IT-96-21-A, Judgement, 20 February
2001 (“Celebici Appeal Judgement”),
para. 279 (beginning its discussion of the Celebici
Trial Decision by noting this holding, and neither
overturning nor qualifying it); Prosecutor v. Blagojevic
and Jokic, Case No. IT-02-60-T, Decision on Prosecution’s
Motion to Admit Evidence in Rebuttal and Incorporated
Motion to Admit Evidence Under Rule 92 bis in its Case
on Rebuttal and to Re-Open its Case for a Limited Purpose,
13 September 2004 (“Blagojevic and Jokic Trial Decision”),
para. 7 (basing the Trial Chamber’s competence to permit
the re-opening of a case on Rule 89(C)). Note that
the jurisprudence contemplates the possibility that
an accused may also seek to re-open his or her case.
See, e.g., Celebici Appeal Judgement, para. 283 (using
the phrase “party making the application” in its statement
of the applicable standard). 6 - For
the purposes of this decision, evidence which is admissible
when used in cross-examination of a defence witness
is not included in this general description of evidence
presented after the close of a case in chief.
7 - Celebici Appeal Judgement,
supra note 5, para. 273. Although this phrasing seems
to introduce an element of reasonable anticipation
that was absent from the Trial Chamber’s
definition of rebuttal evidence, the Appeals Chamber’s
reformulation does in fact capture other elements of
the test that appeared elsewhere in the Trial Chamber’s
decision. Celebici Trial Decision, supra note 5, para.
23. 8 - Celebici Appeal Judgement, supra note
5, para. 275.
9 - Ibid.,
para. 276.10 -
Ibid., para. 283. The most recent Trial Chamber decision
on an application for re-opening went so far as to
identify certain “elements … underpin[ning] the notion
of due diligence”, essentially listing certain steps
that any diligent party would take to ensure that it
had certain evidence at the appropriate time. See
Prosecutor v. Hadzihasanovic and Kubura, Case No. IT-01-47-T,
Decision on the Prosecution’s Application to Re-Open
Its Case, 1 June 2005 (“Hadzihasanovic and Kubura Trial
Decision”), paras. 38–42. The Chamber cited neither
Tribunal nor external authority for its specific prescriptive
propositions, however, and it appears that these comments
were inspired by the particular failings of the Prosecution
in that case. See Ibid., paras. 51–67, 70–74, 79–82,
86–90, 96–100, 104–108. For these reasons, those elements
are not included here as part of the standard as derived
from Tribunal jurisprudence, though they may be useful
factors for a Trial Chamber to consider when evaluating
an application to re-open. 11 -
Celebici Appeal Judgement, supra note 5, para. 286.
12 -
Celebici Trial Decision, supra note 5, para. 26.
13 -
Celebici Appeal Judgement, supra note
5, para. 283. The Trial Chamber had expressed this
balancing test differently, stating that “[w]hile it
is axiomatic that all evidence must fulfil the requirements
of admissibility, for the Trial Chamber to grant the
Prosecution permission to re-open its case, the probative
value of the proposed evidence must be such that it
outweighs any prejudice caused to the accused.” Celebici Trial
Decision, supra note 5, para. 27. Although these
tests may appear identical in substance, the Appeals
Chamber specifically rejected any reference to “prejudice” to
the accused, preferring instead its formulation of “fairness
to the accused” as
the counterbalancing consideration. Celebici Appeal
Judgement, supra note 5, paras. 283, 288. 14 -
Celebici Trial Decision, supra note 5, para. 27; quoted
with approval in Celebici Appeal Judgement, supra note
5, para. 288. See also Hadzihasanovic and Kubura Trial
Decision, supra note 10, para. 47. 15 -
Celebici Appeal Judgement, supra note 5, para. 290.
16 -
See Celebici Trial Decision, supra note 5, para. 27;
Celebici Appeal Judgement, supra note 5, para. 290;
Blagojevic and Jokic Trial Decision, supra note 5,
paras. 10–11. 17 -
Celebici Trial Decision, supra note 5, para. 27; quoted
in Celebici Appeal Judgement, supra note 5, para. 280;
Blagojevic and Jokic Trial Decision, supra note 5,
para. 10; Hadzihasanovic and Kubura Trial Decision,
supra note 10, para. 45. 18 -
See infra, Section IV, p. 7; Section V, p. 10; Section
VI, p. 14. More detailed discussions of the Chamber’s
evaluation of each item of evidence are included in
the Confidential Annex to this Decision (“Confidential
Annex”). 19 -
Application, para. 4 (six witnesses and 49 documents);
Addendum, paras. 1–3 (seeking the inclusion of one
additional document). 20 -
Application, para. 25.21 -
Application, para. 26 (footnotes omitted).
22 -
See Application, p. 7 n.28 (“The Prosecution is presently
trying to re-establish contact with TA-377 in order
to obtain his testimony.”); item 90, dated 30 November
2004, p. 4 (“At this time, [redacted] is unwilling
to testify before the Tribunal or a Military Court
in relation to these matters.’). 23 -
Referred to in the Application as item 1.
24 -
Referred to in the Application as items 4, 16, 17,
18, 19, 23, 6, 15, 13, 16, 21, and 27, respectively.
B-235’s witness statement is also part of this category,
labelled item 26. 25 -
Referred to in the Application as items 30, 31, 32,
35, and 42, respectively.
26 -
Referred to in the Application as item 37.
27 -
Referred to in the Application as items 46, 47, 48,
49, 50, 51, 52, 57, 58, 68, 54, 56, 59, 60, 61, 62,
63, and 67 respectively. This category also includes
the unnumbered document identified in the Addendum
that is a statement by Slobodan Medic about the Scorpions
unit; three witness statements by B-345 (items 64,
65, and 66); a statement by Slobodan Stojkovic (item
75); a witness statement by TA-378 (item 76); and four
statements by Goran Stoparic (items 69, 71, 73, 74),
supplemented by a related statement by a Prosecution
investigator (item 70).
28 -
Referred to in the Application as items 77, 78, 79,
80, 81, 82, 83, 84, 85, 86, 87, 88, and 89.
29 -
See supra para. 18.30 -
Celebici Appeal Judgement, supra note 5, para. 283
(emphasis added).
31 -
Notice, paras. 3, 6; Application, para. 5.
32 -
On inappropriateness of old evidence for re-opening,
see supra paras. 10, 11, 14.
33 -
Application, para. 5 (citing, inter alia, Prosecutor
v. Krstic, Case No. IT-98-33-A, Decision on Applications
for Admission of Additional Evidence on Appeal, 5 August
2003 (“Krstic Appeal Additional Evidence Decision”),
p. 4). 34 -
Reply, para. 18 (also citing Prosecutor v. Kordic
and Cerkez, Case No. IT-95-14/2-A, Judgment, 17 December
2004 (“Kordic and Cerkez Appeal Judgement”), para.
223, upholding the Trial Chamber’s decision to admit
a new witness’ testimony, “unavailable to [the Prosecution]
until late in the trial”, both as rebuttal evidence
and ‘fresh’ evidence). 35 -
Ibid. (emphasis added).36 -
Seesupra para. 12; see also Kordic
and Cerkez Appeal
Judgement, para. 222.
37 -
See Reply, para. 20.38 -
Compare supra note 5 (Celebici Appeal Judgement issued
in February 2001) with Application, para. 5 n.13 (citing
Appeals Chamber decisions from February and April 2001).
39 -
See Krstic Appeal Additional Evidence Decision, supra
note 33, p. 4 (emphasis in original).
40 -
See Celebici Appeal Judgement, supra note 5, para.
287 (holding that “the Trial Chamber’s finding that
reasonable diligence had not been exercised was a sufficient
basis on which to dispose of the application”). 41 -
Reply, para. 16.42 -
See infra, para. 27.43 -
Celebici Trial Decision, supra note 5, para.
26; Celebici Appeal Judgement, supra note 5,
para. 279; Blagojevic and Jokic Trial Decision, supra
note 5, para. 9; Hadzihasanovic and Kubura Trial Decision,
supra note 10, para. 36. 44 -
See Notice, para. 6 (Prosecution noting that it is “alert
to” the Tribunal’s jurisprudence on re-opening a case).
The Chamber therefore considers that the Prosecution
is well aware of the factors that guide a Trial Chamber’s
consideration of such an application. 45 - See
Reply, Annex A; ibid., Annex B, paras. 1, 2, 4–9, 10–15,
16; Reply Addendum. 46 -
See Application, para. 12 (“Until recently, however,
Serbia and Montenegro … was not fulfilling its obligations
pursuant to Article 29 of the Statute. The lack of
co-operation persisted throughout the Prosecution case.”).
See also Reply, para. 10: Despite the fact that States
are obliged to cooperate with the Tribunal in the investigation
and prosecution of accused pursuant to Article 29 of
ICTY Statute, such co-operation has been lacking in
the case of Serbia and Montenegro and Republika Srpska.
In reality, the exercise of obtaining relevant documentation
from the Serbia and Montenegro’s archives has been
akin to the most fiercely contested adversarial application
for disclosure to compel compliance with the obligation
to “cooperate.”
47 -
SeeHadzihasanovicand Kubura Trial Decision, supra
note 10, para. 37 (citing Celebici Appeal Judgement,
supra note 5, paras. 285–286). 48 -
See Reply Addendum, para. 2.49 -
See Confidential Annex, para. 28.
50 -
Application, para. 12 (presenting this general argument
with regard to the Application as a whole, and documents
held by Serbia and Montenegro in particular). See also
Reply, para. 5 (referring to both Republika Srpska
and Serbia and Montenegro): To exclude the material
recently obtained simply on the basis of the fact that
it was obtained after the end of the Prosecution case
would reward those forces that prevented the Trial
Chamber from receiving evidence that should have been
provided much earlier. Excluding this material at this
stage would send the wrong message to those forces
hindering the completion of the mandate of the Tribunal.
51 -
See Application, para. 11.52 -
Unlike the items from the Drina Corps Archive, moreover,
the Prosecution does not report a blanket denial of
the existence of this item from the relevant authorities,
and it is clear that the Prosecution was itself convinced
that the item existed, because it lists five separate
requests for its rendition.
53 -
On this point, the case law of the Appeals Chamber
provides a useful analogy. Although the test applied
at the appellate level for the admission of evidence
that was available at trial is inapplicable to proceedings
before Trial Chambers, see supra paras. 20–22, the
Appeals Chamber applies a different test to evidence
that was unavailable at trial. Evidence is “unavailable”,
for the purposes of this test, if it could not have
been discovered through the due diligence of the party
now moving for admission. Cf. Prosecutor v. Galic,
Case No. IT-98-29-A, Decision on the First and Third
Rule 115 Defence Motions to Present Additional Evidence
Before the Appeals Chamber, para. 13 (holding, in the
context of the test for admitting additional evidence
on appeal, which requires the moving party to demonstrate,
inter alia, that the evidence in question was not “discoverable
through the exercise of due diligence” at trial, that “[t]he
applicant’s duty to act with reasonable diligence includes
making appropriate use of all mechanisms of … compulsion
available under the Statute and the Rules of the International
Tribunal to bring evidence … before the Trial Chamber”)
(internal quotation marks and footnote omitted). See
also ibid. (holding that “Counsel must therefore bring
any difficulties in relation to obtaining the evidence … to
the attention of the Trial Chamber”). Accord Prosecutor
v. Blagojevic and Jokic, Case No. IT-02-60-A, Decision
on Appellant Vidoje Blagojevic’s Motion for Additional
Evidence Pursuant to Rule 115, 21 July 2005, para.
7; Prosecutor v. Naletilicand Martinovic, Case No.
IT-98-34-A, Decision on Naletilic’s Amended Second
Rule 115 Motion and Third Rule 115 Motion to Present
Additional Evidence, para. 11. 54 -
Seesupra para. 27.55 -
Milosevic, Transcript of Hearing, T. 44826 (private
session) (29 September 2005).
56 -
The Chamber also notes that an excerpt from the full
document that is item 77 was already admitted pursuant
to a written decision of 16 June 2004.
57 -
Celebici Trial Decision, supra note 5, para. 27.
58 -
Response, para. 38. See also Milosevic, Memorandum
entitled “Use of Time During Defence Case; Period Ending
20 July 2005”, 21 July 2005 (noting that as of the
conclusion of court on 20 July 2005, approximately
53 percent of the time allotted to the Accused for
his case in chief had elapsed). 59 -
Response, para. 39.60 -
Ibid., para. 40.61 -
Ibid., para. 41 (noting also that “the current witnesses
relied upon to produce the proposed exhibits are unable
to properly create the conditions for legal admissibility”). 62 -
Ibid., para. 42. Article 21(4)(b) of the Statute provides,
in relevant part: “In the determination of any charge
against the accused pursuant to the present Statute,
the accused shall be entitled to the following minimum
guarantees, in full equality: … to have adequate time
and facilities for the preparation of his defence”. 63 -
See Application, para. 4.64 -
Response, para. 43.65 -
Application, para. 16; see also ibid., n. 24 (noting
the Chamber’s power under Rule 85 to control the order
of the presentation of evidence). 66 -
Application, para. 22. See also Ibid., para. 19.
67 -
Ibid., para. 18.68 -
The 2005 summer recess began at the close of business
on 22 July 2005.
69 -
See Application, paras. 18–19. 70 -
See, e.g., Milosevic, Decision on Admission of Documents,
issued confidentially on 28 July 2004 (admitting certain
items of evidence because they are official documents,
provided to the Prosecution in response to a request
for assistance, and contain sufficient indicia of reliability).
71 -
Celebici Trial Decision, supra note 5, para. 27.
72 -
Although the Prosecution is correct that “[t]here is
no mention by the [Celebici] Appeals Chamber of a separate
and additional requirement that the circumstances of
the case be exceptional”, Reply, para. 7 (emphasis
added), the Chamber notes that the part of the Assigned
Counsel’s Response to which that assertion was directed
merely notes the now-unremarkable proposition that “once
a party has closed its case, the re-opening of a trial
is only permitted in exceptional circumstances”. Response,
para. 19. The Chamber also notes that the Celebici Appeals
Chamber quoted with approval the reference of the Celebici
Trial Chamber to exceptional circumstances. Celebici
Appeal Judgement, supra note 5, para. 288 (quoting
Celebici Trial Decision, supra note 5, para.
27). See also Hadzihasanovic and Kubura Trial
Decision,
supra note 10, para. 47. 73 -
See Statute, Arts. 20(1), 21(4)(c); Rules 89(D), 90(F)
of the Rules; Celebici Appeal Judgement, supra note
5, para. 290.
74 -
All three indictments allege that the Accused is responsible
for the crimes alleged therein, not because he physically
committed any of them, but rather because he planned,
instigated, ordered, or aided and abetted their commission,
or participated in a joint criminal enterprise whose
purpose was accomplished through the commission of
those crimes. See Milosevic, Second Amended Indictment
(Croatia), 26 July 2004, paras. 5–6; Milosevic, Amended
Indictment (Bosnia), 22 November 2002, paras. 5–6;
Milosevic, Second Amended Indictment (Kosovo), 16 October
2001, paras. 16, 18.